The Ginsburg Dissent: A One-Act Satire

There’s nothing good about coming back from vacation, but the let-down is certainly alleviated when the Supreme Court announces that Congress and the States can prevent infanticide without running afoul of the Constitution.

Now, it’s time for post-vacation satire. Act One:

The Ginsburg dissent has been receiving hearty support from feminists and leftists: it acknowledges the equality of women, and, presumes by extension that the majority does not believe that women are the economic and social equals of men:

Women, it is now acknowledged, have the talent, capacity, and right to participate equally in the economic and social life of the Nation. Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to their ability to control their reproductive lives. Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a womans autonomy to determine her lifes course, and thus to enjoy equal citizenship stature.

Justice Ginsburg can hardly be commenting on educational opportunities, birth control, or prohibitions against rape: she is plainly discussing partial-birth abortion – essentially, infanticide – and deems it necessary for women to be able to abort their children during the later trimesters in order to fully participate in this nation’s social and economic life.

Whoops! So much for this pachyderm’s thought that she’s been a full participant in American society. Instead of blogging about feminism, should she get herself knocked up and wait until her child can read and write before aborting it?

Ginsburg’s jurisprudence does not distinguish between abortion and the murder of a child at any age. As ill-conceived as Roe is, it at least acknowledged the medical aspect of abortion; Carhart’s dissent leaves no room to condemn the murder of a toddler in order to, in the name of equality, unbind women from the home. Hate that breastfeeding stuff and don’t want to give Infamil to your kid? Helping out with colouring homework got you down? Why not abuse, neglect, or kill your child?

Todays decision is alarming. It refuses to take Casey and Stenberg seriously.

That’s a good thing. Should the Brown Court have taken Plessy and Dred Scott seriously?

Justice Ginsburg makes much ado over the fact that Congress had testimony before it that partial-birth abortions are sometimes necessary. It also had testimony before it that they are never necessary.

The essence of a democratic republic is that every citizen does not get a voice in every issue: we delegate to others the task of legislation, appropriate fact-finding, weighing of those facts and their incorporation into legislation. For Justice Ginsburg, or any other jurist, to make an independent evaluation of all facts, based on the complaints of aggrieved citizens, is to undermine the separation of powers and to usurp legislative authority. Courts may, for themselves, determine the factual basis on which to decide a case, but not the factual basis on which to make legislation. Every citizen who dislikes the outcome of a law – which there invariably are – may not have the courts reconsider the wisdom of such legislation or the weight of facts before Congress. That didn’t work in Greece and will not work in America.

So long as its legislation has a rational basis in the facts before it – i.e. that some facts support the drawn conclusions – it will meet Constitutional muster. It is not the job of Congress to give voice to every quack or charlatan who writes into it, nor to make accommodations in the laws for such.

Ginsburg conceives of a legislative process in which every person may make an independent appraisal of facts and the language of any given law. The end result would be not wiser, gentler legislation, but the bastard offspring of Dilbert-esque bureaucracy and a third-grade slumber party.

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Responses

Ah, my least favorite malady: Post Vacation Stress Disorder.

Good points, especially the Dred Scott case.

Have you noticed how they always refer to reproductive rights as if we were discussing birth control? Someone should let them know that a human being has already been reproduced, albeit in currently smaller form.

I understand the case got tossed out but this byline from the Boston Globe shows a variation of the argument.
“March 7, 2007

BOSTON –A Boston woman who gave birth after a failed abortion has filed a lawsuit against two doctors and Planned Parenthood seeking the costs of raising her child.”
At the time the child is 2 and living with the mom.

By: in2thefray on 25 April 2007 at 6:18 am

Yeah, well Ginsberg at another time might have argued in favor of Pedophiles via the ACLU since they and presumably she think that NAMBLA is such a misunderstood organization. She is worthless (Ruth Buzzie Ginzberg)…….. Next Stop Lauderdale

Neil, that’s a great point re: reproductive rights and people who have already reproduced. Of course, someone once said that abortion is birth control, because it prevents birth. Maybe we ought to start referring to conception control.

Tieki, I can edit that for you if you would like. Yeah, precedent can be (obviously) messed up. Plessy had been around for about 60 years when Brown was decided, whereas Casey is relatively new case law. Besides, at least Plessy had some grounding in the Constitution!

In2theFray: QueenofSwords did a great piece on that a few months back. Thanks for reminding me of it – it highlights one of the big problems with abortion, which is that now, parents think that their children exist at their whim.

SteveReenie: agreed. :) Problem is, conservatives will approve intelligent, hard-core leftists to the bench when they are nominated by Democrats, but the Dems insist that we nominate only centrists.

Well, the conservatives see their approval of judges based on qualifications, not ideology, as a moral high point (understandably) and are unwilling to stoop to the level of the Democrats (understandably).

Nevertheless, it’s about time that we told the Dems to approve or to face the same problems with their nominees – and on no uncertain terms. Don’t like Federalist Society members? Well, maybe we don’t like ACLU members and will filibuster or refuse to appoint them.

I dunno… Bush did whip out the veto pen, so maybe there is some hope that Republicans are standing up for themselves. :)